Under what conditions can the activity of sports attorney be exercised? Eurojuris.fr

Le 14 octobre 2021, la Cour d’appel de Paris s’est prononcée sur la validité d’une modification apportée par l’Ordre des avocats du Barreau de Paris à son règlement intérieur concernant l’Avocat mandataire sportif.

The Court of Appeal considered that these modifications were not in conformity with the law and the National Rules of Procedure of the legal profession (RIN).

Some commentators have mentioned the end of the sports attorney… is that really the case?

Answers with Pierre LAUGERY and Amandine DIERS.

The judgment rendered by the Court of Appeal of PARIS on October 14[1], far from putting an end to the Sports Attorney Lawyer, on the other hand sends him back to a strict application of the law.

Does this intervention of the Judge in the distribution of missions between Sports attorney and Sports agent allow to see more clearly the role of each or is it the first act of a legal and commercial battle between the two professions?

Pursuant to Article L. 222-7 of the Sports Code, only Sports Agents licensed by the delegated federation (FFF, FFR, etc.) may connect sportsmen and clubs with a view to concluding a contract relating to remunerated exercise of a sporting activity.

A law of March 28, 2011 amended the law of December 31, 1971, regulating in particular the profession of lawyer, by adding an article 6 ter:

“Lawyers may, within the framework of the regulations specific to them, represent, as an agent, one of the parties interested in the conclusion of one of the contracts mentioned in the first paragraph of Article L. 222- 7 of the Sports Code”.

This specific mandate which can, since 2011, be entrusted to the Lawyer by an athlete or a club does not however allow the Lawyer to set aside his professional and ethical rules, among which the prohibition to exercise an activity principally commercial nature or the obligation to be remunerated only by his client.

Thus, the professional rules of lawyers can constitute a real obstacle to the development of the activity of the Sports Agent Lawyer who cannot therefore put an athlete and a club in contact and who cannot, as most Sports Agents do within the framework of tripartite agreements, be remunerated directly by the club for a mandate granted by the player, including with the agreement of the latter.

On the other hand, Lawyers, precisely because of their professional and ethical rules, present important guarantees to their clients, athletes or clubs, within the framework of the mandate entrusted to them.

That being said, in an attempt to bring the activity of Sports Attorney Lawyer closer to that of Sports Agent, the PARIS Bar had, by deliberation of June 2, 2020, added to its rules of procedure an article P.6.3.0.3 which provided :

• The possibility for the Lawyer sports agent to “bring together, against remuneration, the parties interested in concluding a contract” relating to the remunerated exercise of a sports activity.

• The possibility for an athlete to give a mandate to the club with which he has concluded a contract “to pay in his name and on his behalf to the lawyer, the fees corresponding to his mission”.

The Attorney General at the Court of Appeal of PARIS brought an action for annulment against this deliberation, an action in support of which the FFF, the FFR, the CNOSF and the UASF (Union des Agents Football Athletes).

It is in this context that, under the terms of its judgment of October 14, 2021, the PARIS Court of Appeal canceled article P. 6.3.0.3 of the Internal Rules of the PARIS Bar because of the 2 points under discussion:

On the question of connection, the Court reasons in several stages:

• Firstly, it qualifies as brokerage the activity of putting an athlete and a club in touch with each other with a view to concluding a contract relating to the remunerated exercise of a sporting activity. She adds that brokerage is an activity “by commercial nature”.

• It then recalls that commercial activity, including that of brokerage, is prohibited for Lawyers, including in the context of a sports mandate, since it is an activity which is not incidental but principal. .

• She continues her analysis, without really demonstrating it, that “the connection of players and clubs is a main mission”.

• She concludes from this that Lawyers cannot connect athletes and clubs when it is necessarily a brokerage activity, commercial in nature, constituting a main mission and not simply ancillary.

On the matter of compensation, the Court is more direct, contenting itself with recalling that the law of December 31, 1971 expressly provides in its article 10 amended by the law of March 28, 2011 that the Lawyer, even if he is a sports agent, can only be remunerated by his client . The Court specifies that the mandate which would be given by the athlete, client of the Lawyer, to the club, not a client of the Lawyer, to pay the fees of his Lawyer would contravene the law in that it would be a source of conflict of ‘interest.

The analysis of the Court of Appeal seems debatable, in particular in that it considers that the contacting activity would necessarily be the main activity, without however explaining in what way, and in that it retains that the payment by the club of the remuneration owed to the Lawyer by the athlete would necessarily be a source of conflict of interest and therefore contrary to the law, without further explaining why and how.

We can nevertheless see that it has sought to maintain the fragile and perhaps illusory balance between two professions in an increasingly tense market, in particular with the health and economic crisis.

This being so, far from putting an end to the Sports Agent Lawyer as we can read here or there, this decision simply organizes a status quo by reviewing each of the actors in their roles and missions: to the Sports Agents the brokerage mission for the linking sportsmen/clubs, to sports lawyers the representation mandate for the negotiation and conclusion of the contract.

Thus, it is the complementarity of players serving athletes and clubs that is favored by the Court.

Nevertheless, the question of the scope of this judgment arises.

Indeed, if the lawyers representing sports are deprived of the possibility of connecting sportsmen and clubs on the grounds that it is a brokerage activity which is prohibited to them, should it be understood from the judgment rendered, that the mission of Sports Agents must be limited to bringing athletes and clubs into contact, excluding any mission of negotiation and conclusion of contracts, a legal activity by nature, which can only be the main one if we follow the analysis by the Court, and therefore reserved for legal professionals.

Not certain that the game is over, unless the lawmaker referee intervenes to signal the end of the game.

This article engages only its authors.